05/29/2013 10:54 am ET Updated Jul 29, 2013

Originalism: The Dark Misunderstanding

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At the time of his now crucial rejection by the senate, Robert Bork's importance did not fully reach me. I knew him only as Solicitor General, third on the Justice Department hierarchy list, who fired Special Prosecutor Archibald Cox on President Nixon's orders after Attorney General Elliott Richardson and Deputy William Ruckelshaus both resigned rather than do so.

This was reason enough to wonder about the man; yet it was not completely unreasonable for a Federal official to carry out the orders -- however self-serving, in a cover-up possibly criminal -- of a sitting president. After all, whether the president had committed impeachable crimes was yet to be determined or decided. Nor did I comprehend, even as Senators Biden and Kennedy ripped into Robert Bork in a manner as demagogic as possible, that, if anything, they were merely headlining, not over-stating just how regressive a jurisprudence Bork was advocating. The very length of detail in the conversation -- let us grace their interchange thus -- between Bork and those prosecutorial senators demonstrated that Bork knew his stuff and had wicked forensic skills. One wanted -- almost -- to accord this battler sympathy.

So here I am, 26 years later, having to admit that I was wrong. Was far too benign. Was much too un-curious about what was going on. I should have deduced, from the passion that Biden and Kennedy brought to the table, that I needed to take Judge Bork as seriously as they had. Today I do. Maybe I am too late. Maybe his effect upon our laws is here to stay. I hope not.

Let me give an example of what judge Bork was about. In an interview in 2009 by Terrence Jeffrey of CNS, Bork said this in answer to a question about the Massachusetts High Court's 2004 decision that same sex marriage did not violate my state's constitution -- indeed, was required by it:

"Only a draconian response to unconstitutional court decisions remains. The Massachusetts Supreme Judicial Court has ordered the state's legislature to amend its statutory law to permit homosexual marriage. It is, or should seem, extraordinary that a court should order a legislature to amend and enact laws. The underlying decision is so self-evidently an act of judicial usurpation of the legislative function, and so wrong as a matter of constitutional interpretation that it might seem that any self-respecting legislature would simply refuse to comply, and if it did comply, that the governor would veto the bill. So accustomed have we become to judicial supremacy, however, that such a course sounds revolutionary. Yet there must be some means of standing up to a court that itself is behaving unconstitutionally in very serious matters."

Before I say more, go back and read that quote again.

In it, Bork says, quite plainly, that a state court has no power -- no right even ? -- to interpret the state's constitution.

Well then. if the state's highest court has no such power, who does ?

Bork's answer, sort of, is "I, Judge Robert Bork, have that right."

That really is what his argument amounts to. He says that the original understanding of the state constitution, as it was written in 1780, must be applied -- and followed. And who is to tell us what this "original understanding' was, some 233 years ago ? At best we can only surmise, or read notes made at the time; or approximate. But why should we do that ? Why isn't it equally appropriate to ask, "What would the originators of the Massachusetts constitution have drafted if they were writing for Massachusetts today ?" After all, John Adams and his team of drafters were not writing a constitution for people who had lived 233 years before them; they were writing one for their contemporaries.

Bork might say, "we have to live with the constitution we have, not the one we might have if written today.' But what does that mean ? Bork would probably say that a constitution is written to give permanent meaning to what we hope will not just be a temporary arrangement; that a constitution should make all people equal no matter in what year -- even what century -- they are born. But that argument presumes that those who write constitutions know what is permanent in human life as opposed to what isn't. I submit that we cannot know this, we can only guess. And that it is the business of courts -- of justice in its most basic application -- to modify our societal arrangements as, over the years, decades, centuries, we learn more about ourselves; and to do so as fairly as feasible to the relationships indicated in the constitution, so as to balance between the interests of continuity and change.

Nothing very radical in that...

I've taken you the reader through this rather extended discourse in the law of constitutional responsibilities not to make lawyers of you but as a foundation for my point about Judge Bork. Because it is Bork's frigid presumption from which the Federalist society of lawyers has arisen. And it is they, as we are now beginning to realize, who have provided legal sword and shield to the dark reaction that has taken such strong hold over one or two great political parties and of much of our society as a whole.

Virulent reaction, irrational, in the gut, now attacks as "unoriginal" 130 years of social progress; that condemns all present moves toward social and economic fairness; all attempts to use the power of the Federal government to make life a little more hopeful for the relatively powerless; all initiatives to provide for the common good, including infrastructure repair, climate change, alternative energy; not to mention women's health care and civil rights (including voting rights )! This fervor would be seen as the destructive sulfur that it is were it not for the legal test tube that Bork and his followers have poured it into.

As we fight against unlimited guns and ammo -- and we have a right to; as we attempt a truly moral immigration reform -- and it is right to do so; as we fight the bankers and the traders of dollars by the ark-load, who manipulate money rather than invest it; as we seek pay equity for women -- and they deserve no less; as we reject the idea that any religion can enshrine its tenets in public law -- because everyone's faith is their burden only --- as we do all of these things, we must do more than fight the politics of the street, at which they play out. We must wrestle "originalism" to the mat. Dare we not reject its contempt for the inventiveness of citizens?

People in community -- and on their own -- have the right to try new things. They have the right to see old things anew. They have the right to correct our mistakes -- and we do make mistakes, just as our parents did. They saw the world imperfectly well; so do we and so will our children. Always we correct the mistakes previously made. Always we should keep on doing so.

Constitutions should not be changed on a whim. Of course not. It is wise not to overturn the wisdom of thoughtful people without a very solid reason -- grounded "in experience," as the great Massachusetts jurist Oliver Wendell Holmes famously wrote in his book, The Common Law. From experience we learn what laws cast in stone of Bork cannot -- should not -- prevent.